Impeachment: Trial Or Dismissal?

Not long ago there was a lively debate going on among Republicans about what would be the best approach for the Senate to take to possible House articles of impeachment against President Trump arriving on its doorstep--dismissal of the articles as insufficient or a very full trial. That question seems to have been answered by Trump himself, who has stated a preference for a full trial. The attractions are immediately obvious, and Republicans are coming up with suggested witness lists--starting with the Bidens, father and son.

On the other hand, I was reminded today that the option of a possible quick dismissal of articles of impeachment or even a refusal by the Senate to recognize their constitutional sufficiency has real merit. The merit lies in issuing a principled rebuke to the full frontal assault that House Dems have launched against our constitutional order--and I don't exaggerate.

We're all familiar with the Maxine Waters Doctrine: "Impeachment is about whatever the Congress says it is. There is no law." It's easy enough to dismiss this nonsense with a simple "consider the source," although it's widely parroted on the Left. Reality based people understand that the Constitution itself is our basic "law of the land," and it lays down the law with regard to impeachment.

But what are we to say to the Nancy Pelosi Doctrine, enunciated by the Speaker back in May, according to which Congress is superior to the other branches of government?

Pelosi claims Congress is a 'superior branch' of government 

House Speaker Nancy Pelosi on Wednesday declared that Congress is a “superior branch” of government, as the clash between congressional Democrats and the Trump administration over closely held documents intensifies. 

During an interview with Robert Costa for Washington Post Live, Pelosi was asked whether Congress is functioning as a coequal branch of government. 

“I think we’re a superior branch, quite frankly,” Pelosi said. “We have the power to make the law and the president enforces the law. So we have a big role. We’re closest to the people and we have a big role to play.” 

Despite Pelosi’s opinion, the U.S. Constitution, in its first three articles, defines three distinct branches of government: legislative, executive and judicial. The separation of powers also creates a system of checks and balances to ensure all three branches are coequal.

When the Speaker of the House dismisses separation of powers and the entire system of checks and balances among three coequal branches of government, is that not a constitutional crisis. Moreover, the Dems have acted on that idea, claiming--and receiving support for their claim from one of those Obama judges that John Roberts says don't exist--that there's no such thing as executive privilege. That essentially means that the executive branch is subordinate to the House, no matter what the Constitution says.

I imagine that the Supreme Court's justices read Pelosi's claim for Congressional superiority with more than a little interest. They cannot have failed to ponder whether a Trump impeachment would be followed by wholesale impeachments of any judges--unelected, and thus the most distant from "the people"--who fall afoul of their new Congressional masters. They will recall the calls for the impeachment of Brett Kavanaugh on essentially no grounds at all beyond those of Dem talking points--any one of the justices could be next!

So, when I read an article in the WSJ today by Jonathan Turley, law professor and impeachment expert, I was reminded of the dismissal option:

Adam Schiff’s Capacious Definition of Bribery Was Tried in 1787

Democrats finally try to follow Edmund Burke, but they are emulating his most spectacular failure.

Turley points out with his historical parallel that the famous Warren Hastings impeachment trial actually underlines the flaws in Schiff's "thinking" that are obvious to anyone who is familiar with the US Constitution. The Framers were well aware of the claims that Edmund Burke was making for impeachment as an all purpose political remedy, because the Hastings trial was ongoing as the Framers worked on the Constitution. Indeed, at least one of the Framers referenced the Hastings trial and strongly suggested that the Hastings impeachment should serve as a model for our Constitution:

In the push for a December impeachment vote, House Democrats appear poised to make history. It will be the shortest investigation producing the thinnest record of wrongdoing for the narrowest impeachment in history. There is, however, a precedent for the Democrats' expansive interpretation of bribery and impeachment: the trial of Warren Hastings, 230 years ago in Britain. but Hastings' tale is a cautionary one that nobody should aim to repeat. 

House Speaker Nancy Pelosi says she has "corroborated evidence of bribery." House Intelligence Committee Chairman Adam Schiff agrees, explaining that, "As the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you're offering official acts for some personal or political reason, not in the nation's interest." 

Such a definition would, in fact, essentially abolish our entire constitutional scheme of government. Under the US Constitution, the United States was established as a republic with a strong executive. This was done with full intent, because of the experience of the dangers of a weak executive during the American Revolution. Schiff's definition of "bribery" would transform the United States into a parliamentary system, substituting a the fiction of a totally disinterested president for the reality of a political figure who could be impeached any time a bare majority in the House disagreed with any official act of the president and was willing to call it "politically motivated."

In fact, of course, this talk of a president acting only out of the purest of non-political motives is no more than a smokescreen to take in the gullible, with no basis in the Constitution itself, nor in history:

... The Framers did not, in fact, view bribery as some overarching concept of corruption. At the Constitutional Convention, George Mason objected to listing only "treason" and "bribery" as impeachable offenses because they were too narrow and limited. He suggested a broader term, "maladministration," citing the still-unfolding Hastings case, which was based on interpretations of bribery and corruption that would soon be exposed as dubious. 

... 

Mason failed. The Framers rejected terms ranging from "corruption," obtaining office by improper means, betraying one's trust to a foreign power, "negligence," "perfidy," "peculation," and "oppression." All these were rejected along with "maladministration" and kept off the Constitution's list of impeachable offenses. 

... The Framers dropped these terms, however, as too broad and undefined. Indeed, in arguing against the inclusion of maladministration, Madison remarked that "so vague a term will be equivalent to a tenure during the pleasure of the Senate," an outcome repugnant to him. ... 

... 

... the Framers expressly warned against lowering the impeachment standard to a mere discretionary option for any party that happens to control the Senate. That's what interpreting bribery to include any action viewed as "offering public acts for some personal or political purpose" would do. All politicians, including Mr. Schiff, are self-dealers who use their offices to advance themselves politically. That doesn't make their acts criminal or impeachable. Remember Warren Hastings.

You'll notice that Turley focuses on the latest Dem talking point: bribery. Another law professor, Alan Dershowitz, has offered a more thoroughgoing explanation for the constitutional principles of impeachment. Dershowitz, of course, totally rejects the Maxine Waters Doctrine. He instead insists that the constitutional standard for impeachment is both criminal and political in a very specific sense. In other words to be impeachable an act must be not only criminal but also a crime that strikes at the heart of the body politic.

Dershowitz also rejects the Nancy Pelosi Doctrine of Congressional superiority over the Executive and Judicial branches. Moreover, he adds a special twist by noting that presidential impeachments are distinct from other impeachments in a significant respect. "Normal" impeachments are ordinarily impeachments of federal judges. These are typically handled by Senate committees and the chairman acts as the "judge" if there is a trial. Not so in the case of a president. The Constitution specifies that in the case of the impeachment of a president the Chief Justice presides at the trial. This means that in a presidential impeachment all three branches of the government are involved, and it also--as Dershowitz points out--injects a properly Judicial character to any trial. There has been very little experience to go on in US history, but Dershowitz argues that a Chief Justice could exercise a considerable influence and even that--given the Chief Justice's involvement--decisions could be appealed to the full SCOTUS! And the specific decision Dershowitz has in mind would follow upon a motion to dismiss for failure to state constitutionally valid grounds for impeachment.

All this may sound far fetched, and yet in light of the extreme claims that House Dems are advancing against our constitutional order the Chief Justice could decide to take a much more active role in any trial. Another option, of course, would be for the Senate to reject House articles on the same grounds. The Senate does not have to allow an imperial House to dictate that it must hold a trial, nor the terms on which the Senate will conduct such a trial. While there are many attractions to a full and extended trial, doing the right thing by the Constitution has its own attractions.

In what follows, I append excerpts from three Dershowtiz articles on these topics.

Why the Framers would reject the Democrats' impeachment criteria

BY ALAN DERSHOWITZ — 09/27/19

Many Democrats, including some constitutional law professors, now argue that President Trump can be impeached without evidence of high criminal acts. Some took the opposite view when President Clinton was being impeached. Hypocrisy aside, there are good historical reasons why the impeachment approach of the Democrats is wrong.

During the debates over the impeachment provisions of the Constitution, two differing views of our structure of government were presented. Some Framers argued that a president should be subject to removal by the legislature if he engaged in malfeasance of office or other comparable noncriminal misconduct. The other Framers took the view that giving the legislature such broad authority to remove a president would turn our country into the kind of parliamentary democracy that existed in England, rather than a republic with a strong executive branch.

The Framers rejected the broad criteria proposed by some, and required instead that a president could be removed only after a trial when he was convicted of “treason, bribery, or other high crimes and misdemeanors.” These more specific criteria assure that a vote to impeach an American president would be very different from a vote of no confidence by parliament, which removed a British prime minister.
... Throughout our history, there have been some who have wrongly argued the criteria for impeachment or removal is whatever the House and Senate want it to be. This would turn it into an entirely partisan process, and the Framers did not intend that.

When it comes to removing a president, there is an added constitutional protection. The chief justice of the Supreme Court must preside over the trial, thus introducing a judicial element into the process. The role of the chief justice is, in my view, and in the view of at least two former Supreme Court justices, to assure that Congress does not ignore the Constitution and put itself above the law. We hear from so many Democrats today that no one is above the law, referring to the president. But neither is Congress above the law, and the law mandates that the explicit criteria laid down in the Constitution for impeaching a president must be followed.

Applying these historical truths to the current situation, the case for impeaching President Trump based on the available evidence is extremely weak. The phone call to the president of Ukraine may have been ill advised, but that is a judgment for voters to make. There is nothing in the call that even approaches the constitutional criteria for impeachment and removal of a president. Nor does the special counsel report contain evidence that would justify impeachment. Democrats are seeking to weaponize the Constitution for partisan purposes.

A partisan impeachment vote is exactly what the framers feared

BY ALAN DERSHOWITZ — 11/01/19 

... 

Hamilton warned of the “greatest danger” that the decision to move forward with impeachment will “be regulated more by the comparative strength of parties than the real demonstrations of innocence or guilt.” He worried that the tools of impeachment would be wielded by the “most cunning or most numerous factions” and lack the “requisite neutrality toward those whose conduct would be the subject of scrutiny.” 

.... Impeachment is an extraordinary tool to be used only when the constitutional criteria are met. These criteria are limited and include only “treason, bribery, or other high crimes and misdemeanors.” Hamilton described these as being “of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

His use of the term “political” has been widely misunderstood in history. It does not mean that the process of impeachment and removal should be political in the partisan sense. Hamilton distinctly distinguished between the nature of the constitutional crimes, denoting them as political, while insisting that the process for impeachment and removal must remain scrupulously neutral and nonpartisan among members of Congress.

Thus, no impeachment should ever move forward without bipartisan support. ... 

... The framers intended the Senate, which was not popularly elected at the time the Constitution was written, to be less partisan and act more like judges.

The Supreme Court chief justice presides over the Senate removal trial of a sitting president, and adding that key judicial element would seem to demonstrate a desire by the framers to have a presiding officer whose very job description is to do justice without regard to party or person. ... 

... If the grounds for impeachment designated by the House include criteria such as maladministration or corruption, his lawyers could plausibly demand the chief justice to dismiss the charges as unconstitutional.



Weaponizing Impeachment against Political Opponents 

by Alan M. Dershowitz
November 4, 2019 at 5:00 am

* This very issue was debated at the Constitutional Convention, where one delegate proposed "maladministration" as the criteria for impeachment and removal of a president. James Madison, the Father of our Constitution, strongly objected on the ground that so vague and open-ended a criterion would have the president serve at the will of Congress and turn us from a Republic with a strong president into a parliamentary democracy in which the chief executive can be removed by a simple vote of no confidence. Instead, the Convention adopted strict prerequisites for impeachment: treason, bribery or other high crimes and misdemeanors.

* Congress is not above the law. It is bound by what the Framers accepted and cannot now apply the criterion the framers explicitly rejected.

* Most important, misusing the impeachment power in a partisan manner would pose, in the words of Hamilton, "the greatest danger" to our Constitution.

* To be impeached, a president must commit a crime (misdemeanor is a species of crime) and the commission of that crime must also constitute an abuse of office. An abuse of office without an underlying crime is a political sin, but not an impeachable offense. 

The constitutional power to impeach a duly elected president was intended by the Framers of the Constitution as a neutral, non-partisan tool of last resort to be used against only criminal incumbents in extreme cases. It is now being deployed as a partisan weapon that can be used routinely against presidents of a different party from those who control the House of Representatives.

Under the views of some members of Congress, any time the House is controlled by one party, a simple majority can properly vote to impeach. As Congresswoman Maxine Waters put it: "Impeachment is about whatever the Congress says it is. There is no law." She is wrong. The Constitution is the law and she is not above it.

...

Those who characterize the impeachment and removal process as completely political are wrong as a matter of constitutional law, even if they are right in describing the reality of how it is being currently misused. Advocates of this view misquote Hamilton in Federalist #65.
Hamilton did characterize the criteria for impeachment as "political," but only in the sense that they relate to "injuries done immediately to the society itself." He then immediately rejected the view that the process should be partisan, based on "the comparative strength of parties," rather than on "the real demonstrations of innocence or guilt."  

He called that the "greatest danger" and demanded "neutrality toward those whose conduct may be the subject of scrutiny." Those who misquote and misunderstand Hamilton wrongly conflate the words "political," by which he meant governmental, and "partisan, " by which he meant related to the comparative strength of parties and factions.
It is difficult to imagine a greater breach of Hamilton's principles than the recent House vote along party lines.